Judgment

MITTER, J.:- The only question raised in this appeal from a judgment and order of the High Court of Gujarat dismissing an election petition is, whether the returned candidate was not qualified to be chosen to fill a seat of the State Legislative Assembly inasmuch as he did not subscribe to an oath or affirmation according to the form set out for the purpose in the third Schedule to the Constitution as prescribed under Article 173 thereof.

2. The relevant facts may be stated as follows: The notification of the Governor of Gujarat under Section 15 (2) of the Representation of the People Act of 1951 for the purpose of election to the Gujarat State Legislative Assembly was issued on January 13, 1967. Nomination papers were filed by several persons including the returned candidate and the scrutiny thereof was made on January 21, 1967. The poll took place on February 18, 1967 and the result declared on February 27, 1967 showing the returned candidate wining comfortably by a margin exceeding 3800 votes over his nearest rival. One of the grounds taken in the election petition was that immediately after the scrutiny of the nomination papers, the third respondent to the election petition has filed a written objection before the Returning Officer contending that the returned candidate had not taken oath properly and on the same ground he along with respondents 2 and 4 were not qualified to be chosen and their nomination papers should be rejected. This contention was turned down by the Returning Officer and was also negatived by learned Judge who heared the election petition and in this appeal the unsuccessful petitioner has only pressed this ground.

3. The relevant portion of Article 173 of the Constitution reads as follows:-

"A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he...........

(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;

(b) and (c) xx xx xx."

The Third Schedule contains various forms of oath or affirmation. Form VII-A, the relevant form for the present purpose is, as follows:

"Form of oath or affirmation to be made by a candidate for election to the Legislature of State:-

"I, A. B., having been nominated as a candidate to file a seat in the Legislative Assembly (or Legislative Council),

swear in the name of God

do____________________ that I will

solemnly affirm

bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India."

4. The returned candidate had filed three nomination papers with three different proposers on January 20, 1967. Each of the three nomination papers clearly mentioned that he was a candidate for election to fill a seat in the Vidhan Sabha for the Gujarat State i. .e Legislative Assembly of the State. The nomination paper of the returned candidate contained a form of oath or affirmation which was both in Gujarati as well as in English. The English form followed word for word Form No. VII as set out in the Third Schedule, to the Constitution and the Gujarati form purported to set out the Gujarati translation of the form of oath or affirmation. The relevant difference for the purpose of this appeal between the two forms lay in this that the words "Legislative Assembly" in the form in English were translated in Gujarati form as "Rajya Sabha" and the appellant s contention before the High Court and before us rested solely on the use of this word which according to learned counsel went to show that the oath that was taken was for the purposes of filling a seat not in the legislative assembly of the state but in the Legislative Council of the State. At the hearing of the petition before the High Court the returned candidate gave evidence to the effect that he had taken the oath not according to the words in the Gujarati fo